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How to Protect Your Game From Clones

The mobile gaming industry is experiencing an invasion of clones. While cloning has a long and varied history, it has become more prevalent with the explosion of social and mobile games. Take, for example, Words With Friends, a variant on Scrabble, and the scores of Minecraft clones on the market. As game development times decrease and the useful lifetime of games diminishes, cloning has become more lucrative: games are easier to copy, and there are more of them to clone. The influx of copycat games in the mobile space brings with it new legal questions - are these clones merely off-brand digital replicas or are they blatant theft?

"The costs of being the victim of cloning has increased as developers invest more in marketing games, only to see knockoffs emerge after a game reaches popularity"

Historically, protection for video games has been obtained through copyrights and patents. Copyright protection can extend to the expressive, non-functional elements of a game, such as audiovisual display and the underlying source code, but not the ideas behind the game itself. Patent protection extends to the functional aspects of games, such as gameplay mechanics.

These protections notwithstanding, the limitations of intellectual property rights to deter cloning are a sore spot for the industry. Aside from the usual challenges initiating litigation presents (lawsuits can be expensive, lengthy, and uncertain), the scope of protection afforded by copyrights in video games is distinct, and patents can take years to obtain. In addition, the costs of being the victim of cloning has increased as developers invest more and more in marketing their games, only to see knockoffs emerge after a game reaches threshold popularity. Cloning is not necessarily easy to defeat within the parameters of traditional intellectual property litigation, as the following examples demonstrate.

Patenting Play

Patent disputes over video game hardware - and in particular consoles and other peripherals - abound. In fact, among the earliest video game patent disputes involved Magnavox's claim to exclusive licensing rights to three patents dealing with a "television gaming apparatus" previously licensed to Atari for the classic game Pong. But video game patents extend to game methodology, too. In 2004, Sega sued game publisher Fox Interactive and Electronic Arts for allegedly using technology from a Sega-owned patent in the game The Simpsons: Road Rage. That patent claimed a "game display method" by which the player uses a map to drive around a virtual city while a large arrow hovers above the driver showing how to reach a destination. Sega used similar technology in its Crazy Taxi game and sued for patent infringement. The parties settled before claim construction for an undisclosed sum.

More recently, Japanese game maker Konami sued Harmonix, MTV, and Viacom alleging the popular game Rock Band infringed three of Konami's patents. Among the patents at issue was one that addressed dividing game play into different sections for different instruments and displaying instructional play patterns for each - essentially, a method of divided game play. After two years of litigation, the parties settled in 2010 for undisclosed terms.

The Copyright Creed

Copyright litigation has long been the favoured avenue of protection for game developers. For instance, in 2003, Incredible Technologies sued Virtual Technologies over Virtual's game PGA Golf Tour, claiming it copied Incredible's Golden Tee game. Incredible copyrighted the game imagery and instructional guide. The Seventh Circuit found that though it was "pretty clear" Virtual set out to copy PGA Golf Tour, most of the similar elements were not protectable. For example, the trackball system used in gameplay was deemed a functional feature, possibly eligible for patent protection but not copyright. And the golf-related imagery appearing in both games was subject to the scenes a faire doctrine, meaning the presentation of a realistic video golf game would by definition need golf courses, clubs, a wind meter, etc.

Zynga faced similar challenges in its recent litigation with Brazilian developer Vostu. In 2011, Zynga accused Vostu of infringing Zynga's copyrights in connection with Vostu's clones of FarmVille, Zynga Poker, Petville, and Café World. Zynga alleged Vostu copied Zynga's games so closely that the clones inadvertently included bugs. In turn, Vostu claimed Zynga could not claim ownership over certain game elements, and that Zynga itself is a well-known cloner. The parties settled in December 2011 and Vostu made changes to its games as part of that settlement.

"If Spry Fox's complaint is dismissed, it will further signal that intellectual property rights are inadequate to remedy cloning"

Establishing that the protectable elements of a game were copied seems to be the predominant challenge game developers face in protecting their works through copyright law. This challenge forms the crux of the dispute between game developers Spry Fox and LolApps in Washington federal court. In 2011, Spry Fox sued LolApps for copyright infringement and false designation of origin over Spry Fox's copyrighted Triple Town game. LolApps had previously been in negotiations with Spry Fox to launch TripleTown on Facebook. Spry Fox entered into a non-disclosure agreement with LolApps pursuant to which Spry Fox granted access to a closed, beta version of TripleTown to allow LolApps to evaluate the game for publication. But six months after signing the NDA, LolApps abruptly ended negotiations and launched its clone, Yeti Town. On the day of the launch, an LolApps executive sent a potentially damning Facebook message to a Spry Fox creator: "I need to back out of any further discussions on Triple Town. We've just published a game on iOS that you're not going to like given its similar match-3 style."

Spry Fox made that email a centerpiece of its complaint, alleging that LolApps deliberately copied the game rules, user interface elements, layout, visual presentation, sequence and flow, scoring system, and overall look. LolApps moved to dismiss the action claiming Spry Fox alleges infringement of non-copyrightable elements only, and moreover that the games are not substantially similar. A motion to dismiss is currently pending before the court, and the arguments made in briefing go to the very scope of copyright protection in video games. If Spry Fox's complaint is dismissed, it will further signal that intellectual property rights are inadequate to remedy cloning.

Takeaways and Best Practices

The Spry Fox case is instructive in demonstrating that the law favours copiers, not developers. Spry Fox had an NDA with LolApps in place, and presumably a launch deal within reach. But now it finds itself embroiled in litigation that could drag on for years, easily outliving the popularity and potential profitability of its game. With those risks in mind, there are still best practices game developers can and should undertake in order to best position themselves when the clones attack:

1. Include more protections in your Nondisclosure Agreement (NDA). Before sharing source code, demos, or ideas with potential partners, consider executing an NDA that specifically prohibits cloning or the use of any derivation of the IP shown to the other party. The NDA should include a presumption regarding the developer's remedies in the event the game is ultimately cloned, and most importantly, copying should be defined more broadly than copyright protection allows. Because you will be negotiating a contractual right, you are not limited to the strictures of intellectual property law. While you may find this somewhat time consuming on the front end, it could avoid disputes later.

2. Scramble the code. Oftentimes cloners simply reverse engineer a popular game in order to copy it. One way to avoid this is to obfuscate the source and machine code of your game so that it cannot be reverse engineered. Amazon has promoted this idea in its Appstore.

3. Consider patent protection. Patents are costly, take a long time to obtain, and are more traditionally used in the video game space to protect consoles and peripherals. But they can also be extremely broad in scope and extend protection to game rules, processes performed by a game, and methods of game play. Consider whether the patenting of specific in-game elements is appropriate for your game.

4. Explore what copyright can do for you. Copyright is the most traditional form of protection for in-game elements and can be helpful in preventing cloning. Copyright protection extends to expressive, non-functional aspects of the game such as background music, specific visual depictions of characters and art, and source code. What copyright will not protect are the contents of game rules (as opposed to expression), the functional procedure and mechanics of a game, and scenes a faire elements. A registered copyright can be a powerful tool, and can also help attract investors and financing, giving developers some negotiating credibility.

5. If you do get cloned, launch a media offensive. One way to challenge a clone is not in the courtroom, but on the web. If your game is cloned, consider launching a media offensive on the blogosphere to draw attention to the cloned game.

Ben Hur is a intellectual property and complex litigator in the gaming and mobile application industries for Keker & Van Nest.

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13 Comments

Advocating patenting is not cool. It is not what our industry needs. It puts personal greed over the health of our industry.

Want to make a game which can't be cloned? Make it uncloneable. Make it so special that even if someone made a copy of the mechanics, they don't love it as much as you do, and they can't make it better because they don't have the heart you do. If your game remains better then you win, and there is more than just the core mechanics of a game which make it good ( example: http://www.youtube.com/watch?v=Fy0aCDmgnxg ). If you have a small novel iteration on previously established mechanics good for you, but if your game is still so basic it can be cloned and arguably improved in a very short period of time then you are not doing enough. Imagine if some developer had successfully patented "combining objects to create or destroy other objects" before any of the bigger match-3 style games were made.

If someone clones and their game isn't better then who cares. If their game is better then learn what they did and make your game even better. That's all that should matter: making better games.

I'm pretty sure this strategy wouldn't work with Gameloft. They actually have a design documentation, methods and how-to's to rip off a game as accurately as possible within legal limitations. It is their standard procedure. And it's quite ridiculous the amount of money they make this way.

Patents balance the need for individuals and companies to earn income for their work. Within less than 20 years, the idea pass into the public domain. So this balances the needs of both the creators and the public.

What is really NOT COOL is suggesting that there should be open game against creators, so others can just take IP from them.

"After all, the point of the patent system is not to guarantee inventors a financial return, but to encourage them to reveal their secrets so that everyone will know about them and can use them after a certain amount of time has passed."

I say to people who want to patent game mechanics: stay away from games. We don't need your secrets. You can make more money not making games. You will only hurt real innovation and progress. We already have so much that is not patented, and that is good for games, but even what is patented hurts gamers and other developers. See: http://www.giantbomb.com/interactive-loading-screen/92-1419/ US patent 5,718,632 is the reason why so many games didn't include mini games during loading screens. This patent does not expire for a few years still. Really? It was worth it to block so much fun because one developer got a patent for an obvious idea like this?

There is so much that is obvious with game design. I've invented things worth patenting, but I refuse to be a part of that. Clone my games! Teach me how to make better games! The belief that clones hurt is stupid. The example of what LolApps did sucks, but I think what Spry Fox did in reaction is a mistake. Life is too short to be so hostile and greedy. Public shame for LolApps is enough.

The patent system is broken and its use should not be encouraged. It no longer makes sense with how it has been abused for so long. Patents are not good for games, not good for software, not good for people.

"What is really NOT COOL is suggesting that there should be open game against creators, so others can just take IP from them."

IP is not the same as game mechanics. Protect your game name, your world, your characters, your art, your creations, and if someone tries to use any of the things you have personally made (your art, your characters, your code) then go after them if you want to, but don't try to block other developers from learning from your games and iterating game mechanics to make better games. We all stand on the shoulders of giants.

Nice overview of US law as it applies to clones, but it is interesting that the author makes no mention of the DMCA or the takedown provisions in Section 512 as a cheap, effective tool to remove knock-offs from digital App stores. Seems like a good place to start for dealing with clones if they have infringed copyrighted materials.

Many developers, such as MumboJumbo and PlayFirst, have abused these systems. The games they took down did not have any taken copyrighted material, and what's worse is that they argued that the games were clones; however, their own games were clones! Diner Dash is a clone of Betty's Beer Bar, and Luxor is a clone of Zuma, which is a clone of Puzzle Loop... and so on. The only legitimate reason for the use of legal tools like you mention is if actual copyrighted assets from games are being used in other games. This has happened, but usually is not the case.

This article makes me think that IP law is often an inappropriate (and expensive) tool to defend against cloning. Software patents in particular are a terrible idea.

A good design needs to be supported by solid execution and receptiveness to what players want. A cloner may be able to move quickly and market heavily, but it's rare for them to make something as good as the original game and that will connect enduringly with an even moderately discerning audience.

Getting mired in litigation stops small developers from improving their games.

All games are derivative.
At Kwalee we have the best connect 5 game on the app store, Gobang Social. There were plenty of others there before us but we made the best. We plan to do the same with other board games. This tactic has worked well for Zynga.
With a million plus apps out there (plus all the Flash games that preceded them) it is obvious that almost every new game must be just a development on what is already there. True, genuine innovation is exceedingly rare.

The true innovations in the app store are implementing social features and developing IAP strategies. It is the people doing these well that are having the biggest success.

Advantage creates disadvantage, a lead begins a trail. Patents, evil or not, provide a protection for investing the effort into developing a solution to a difficult problem such that if it could be profitable that the one who invested in and solved the problem are the first to be rewarded from it.

One of the problems is that legal protections can be abused, and those without legal protection can be exploited, presumably because our focus in this regard seems to revolve around what we can do to the limit of the law rather than in consideration to is just.

The digital age has created an environment that quickly challenges legal systems. Perhaps an overhaul is in order and the laws of yesterday need a little reconsideration to cope with the fact that they just don't quite measure up when tested at such a fast moving industry.

Load-a-games patented in 1998? Really?
I wrote a mini-game to run while loading a game *from cassette tape* on my C64 back in 1986.
It has been downloadable from my website since 1996 or so.
And I was not the only one who did that. "Mix-e-load" being a famous commercial varient.